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Photo of Walter Gobitas with his children, William and Lillian.
Walter Gobitas, center, with his children, William and Lillian. In 1940, the Supreme Court rejected the Gobitas family's argument that the First Amendment protected the children's right to refrain from partipating in a daily flag salute in their public school.

Reproduction courtesy of Corbis Images
Minersville School District v. Gobitis (1940)

The origins of the flag salute controversy at the heart of the 1940 Supreme Court case Minersville School District v. Gobitis can be traced to Nazi Germany. In 1933, on the orders of Adolf Hitler, the Nazi Party banned Jehovah's Witnesses for their refusal to join in raised-palm salutes to Nazi flags in schools and at public events; more than 10,000 Jehovah's Witnesses were eventually removed to concentration camps. In 1935, in response to these events, Joseph Rutherford, the American leader of the Jehovah's Witnesses, made a radio address denouncing compulsory flag salute laws in the United States and calling on American Witnesses to refuse to comply with them.

Lillian and William Gobitas were practicing Jehovah's Witnesses in the devoutly Catholic community of Minersville, Pennsylvania. In the fall of 1935, they were in the seventh and fifth grades, respectively, when they decided to heed Rutherford's call and begin refraining from the daily recital of the Pledge of Allegiance practiced in their public school classrooms. Upon hearing of the Gobitas children's actions, the superintendent of their school system sought, successfully, to have the Board of Education pass a resolution requiring all students to "salute the flag of our Country as a part of the daily exercises" and stating that a student's refusal to cooperate "shall be regarded as an act of insubordination and shall be dealt with accordingly." Lillian and William Gobitas were subsequently expelled from their school and forced to enroll at a private institution.

The children's father filed suit on their behalf and won several decisions from lower courts. The Minersville School District continued to appeal the decisions, and in 1940 the Supreme Court agreed to hear the case. (A clerk spelled the family's name incorrectly on court papers, so the case is officially known as Minersville School District v. Gobitis.) Writing for an 8-1 majority, Justice Felix Frankfurter delivered the opinion of the Court. He began by noting the "grave responsibility" the Court had in "reconcil[ing] the conflicting claims of liberty and authority" at stake in the case. He referenced the country's history as a haven for religious dissenters and affirmed the First Amendment's prohibition -- extended by the Fourteenth Amendment to the states -- of laws abridging the freedom of religious belief.

However, Frankfurter contended, the right is not an absolute, and because "national unity is the basis of national security," states retain the constitutional authority to "select appropriate means" to foster such unity -- sometimes even at the cost of individual liberty. Quoting Justice Oliver Wendell Holmes, Frankfurter declared, "'We live by symbols.' The flag is the symbol of our national unity." He held that states could reasonably conclude that allowing students to recuse themselves from the flag salute would negatively affect the patriotism of their classmates, and urged "judicial restraint" in the area of education policy -- contending that because it was a reasonable exercise of Pennsylvania's police powers to allow school districts to expel dissenting students, the ultimate "wisdom" of the Minersville resolution lay outside of the judicial branch's proper sphere of consideration.

In an eloquent defense of the First Amendment's guarantee of freedom of religion, and against Frankfurter's personal entreaties that he not hold "too tight a rein" on government officials as they geared up for war, Justice Harlan Fiske Stone issued the Court's sole dissent. Rejecting the idea that "the country will be better served by conformity than by the observance of religious liberty which the Constitution prescribes," Stone denied that constitutionally protected civil liberties could be circumstantially abridged and argued that Minersville's compulsory flag salute amounted to persecution: "History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities."

The Court's decision, released against the political backdrop of the nation's movement toward war, engendered hundreds of attacks on Jehovah's Witnesses across the country. Unruly mobs burned down their meeting places, expelled their religious leaders, and in at least one case forced Jehovah's Witness children to drink castor oil and parade through town. Newspapers across the country carried reports on the hazings and created a backlash against the Court. Just three years later, in 1943, the Court accepted another flag salute case -- West Virginia State Board of Education v. Barnette. This time, three justices who had signed the majority opinion in Gobitis changed their votes, joining Stone and two new justices as the Court reversed its prior decision, holding that whether a student's objections were religiously based or not, the First Amendment guaranteed the right to nonparticipation in flag salutes. Writing for the majority, Justice Robert Jackson echoed Stone's earlier dissent: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

Toni Konkoly is a production assistant at Thirteen/WNET.

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